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Table of Contents
Table of Contents......
PRESUMPTION OF INNOCENCE......
Woolmington v. D.P.P. (UK 1935)......
Proof Beyond a Reasonable Doubt?......
ACTUS REUS AND MENS REA = GUILT......
CONTEMPORANEITY OF A/R AND M/R......
Fagan v. Commissioner of Metropolitan Police (UK 1969)......
R v. Miller (UK 1982)......
VOLUNTARINESS OF THE ACT......
Rex v. Larsonneur (UK 1933)......
Jobidon v. Queen (1991)......
ACTS OF OMISSION – DO THEY CONSTITUTE CRIMINAL OFFENCE?......
People v. Beardsley (US 1907)......
The Queen v. Instan (UK 1893)......
R. v. Thornton (1991), Ont.C.A.......
CAUSATION......
Regina v. Jordan (UK 1956)......
The Queen v. Smith (UK 1959)......
De Minimis Cause and Cases of Constructive Manslaughter......
R v. Smithers (1975)......
R v. Cribbin (1994)......
CONSTRUCTIVE MANSLAUGHTER......
R v. Creighton (1993)......
CONSTRUCTIVE MURDER......
Vaillancourt v. The Queen (1989)......
Regina v. Martineau (1990)......
ATTEMPT (s.24 of CC)......
MENS REA FOR ATTEMPT......
Regina v. Ancio (1984) (before Vaillancourt and Martineau which deemed s.213(d) unconst’l).....
Regina v. Logan (SCC 1990)......
ACTUS REUS FOR ATTEMPT......
The King v. Robinson (UK 1915)......
IMPOSSIBLE ATTEMPTS......
Anderton v. Ryan (UK 1985)......
Participation......
S.21 Aiding and Abetting......
Regina v. Salajko (Ont CA 1970)......
Dunlop and Sylvester v. the Queen (SCC 1979)......
Common Intention......
Regina v. Trineer (SCC 1970)- before Charter, Vaillancourt, Martineau......
R. v. Logan, [1990] S.C.C.......
Participation and First Degree Murder......
Harbottle v. The Queen (SCC 1993)......
Mental States......
Standards of Fault......
Subjective......
Objective......
Strict Liability......
The Elements of Subjective Mens Rea......
A) Intent......
B) Knowledge......
C) Recklessness......
Cases of Intent......
Rex v. Steane (UK 1947)......
Dunbar v. the King (SCC 1936)......
Paquette v. The Queen (SCC 1976)......
Hibbert v. the Queen (SCC 1995)......
Regina v. George (SCC 1960)......
CRIMINAL NEGLIGENCE......
Regina v. Tutton and Tutton (SCC 1989)......
Presumed Intent......
Regina v. Vasil (SCC 1981)......
Regina v. Martineau (1990)......
Presumed Intent - M/R for War Crimes......
R v. Finta (SCC 1994)......
ABSOLUTE AND STRICT LIABILITY......
Regina v. City of Sault Ste Marie (SCC 1978)......
Reference Re Section 94(2) of the B.C. Motor Vehicle Reference (SCC 1985)......
Regina v. Pontes (SCC 1995)......
Regina v. Wholesale Travel Group (SCC 1991)......
MISTAKE OF FACT......
Pappajohn v. The Queen (SCC 1980)......
Sansregret v. The Queen (SCC 1985)......
Regina v. Seaboyer (SCC 1992)......
Regina v. Kundeus (BC CA 1974)......
INTOXICATION......
DPP v Beard (UK 1920)......
Regina v. George (SCC 1960)......
Leary (SCC 1977)......
Bernard (SCC 1988)......
R v. Penno (1990)......
R v. Daviault (SCC 1994)......
DAVIAULT IN A NUTSHELL......
Automatism......
Rabey v The Queen (SCC 1980)......
Parks (SCC 1992)......
R v. Stone......
STONE IN A NUTSHELL......
NECESSITY......
Dudley and Stephens (UK 1884)......
Perka (SCC 1984)......
PRESUMPTION OF INNOCENCE
Guaranteed in s. 11(d) of Charter and s.6 of Criminal Code.
Burden of proof is on Crown to prove the guilt of the accused beyond a reasonable doubt – essential safeguard in the criminal justice system.
Woolmington v. D.P.P. (UK 1935)
Reg killed estranged wife Violet with a sawed off shotgun. Claims that it went off by accident, and that he never intended to kill her. He was only going to threaten to commit suicide if she did not come back.
Mistake in the instruction to the jury. Judge said that if you believe that Violet died as a result of Reg’s actions, then that is murder, unless he can prove that it was something less. The intent of malice is presumed in the killing, unless he can prove otherwise. This is problematic for two reasons:
1.There is a presumption that it is murder with malice (intent).
2. The burden of proof is on the defendant to prove otherwise.
House of Lords acquitted Woolmington on the basis of this misdirection to the jury. The Crown must prove the death as a result of the voluntary act of def, and def’s malice. They must prove this beyond a reasonable doubt. Def can provide evidence to contradict Crown’s case, but burden of proof is never on him to prove his innocence. This is because:
1.prosecution would not have to prove its case beyond a reasonable doubt
2.defendant might be able to make a good case, but not quite achieve innocence beyond a reasonable doubt.
In Canadian law there are times where Courts can shift the burden of proof to accused.:
Daviault: new defence of extreme intoxication
Stone: defence of non-insane automatism
Offences of strict liability. (Wholesale Travel)
The accused must prove their defence on balance of probabilities. The presumption of innocence can be a justified violation under s.1.
Proof Beyond a Reasonable Doubt?
Judges can only instruct as to meaning of reasonable doubt on the specific circumstances of the case. It only has meaning within the specific context of the case.
R. v. Lifchus – SCC provides trial judges with a model jury instruction on reasonable doubt. Now there is fear that you have to cite Lifchus word for word.
Contradictory – Cory J says reasonable doubt should be based on common sense. Then says it should not be treated as everyday, ordinary language. Note: No real definition of r.d.
ACTUS REUS AND MENS REA = GUILT
Actus reus must be voluntary i.e. the accused must have the ability to control his actions.
Mens rea – “guilty mind” element of fault
CONTEMPORANEITY OF A/R AND M/R
There must be some contemporaneity b/w the AR and MR –at some point the AR and MR must coincide.
Fagan v. Commissioner of Metropolitan Police (UK 1969)
Fagan drives car on constable’s foot innocently. Constable tells him to get off. Fagan tells him to wait. Car engine at some point turns off (don’t know why), Fagan starts engine and backs off.
Fagan charged with assault.
Assault – some intentional act must be performed, a mere omission cannot be an assault.
Defence argued that there was no intent to drive onto foot, and leaving car on foot was clearly an omission. Therefore no MR at the time of the AR.
POL: Court rules on the basis of “continuing act theory”-if a sequence of events constitutes the AR, then as long as the MR occurred at some time during the sequence then you have the full offence.
Fagan’s action was a continuing act.
R v. Miller (UK 1982)
Miller is a squatter who lights cigarette and falls asleep. Wakes up and sees mattress smoldering. Moved to another room and went back to sleep. House caught fire.
Charged with arson.
Ratio: CA used continuing act theory. Said that an intentional act, followed by an intentional omission to rectify that act or its consequences can be regarded as an intentional act. In this case, a recklessness was used as the mens rea – said that a reckless omission can be sufficient for the offence of arson. Omission was used as the element of fault.
HL said that it was better to use the “duty theory” and that if one creates a danger then one has a duty to take measures to counteract that danger.
POL – This would be a questionable judgment in Cdn law because it creates liability out of an omission, which we are hesitant to do unless it is a statutory breach, or there is a specific prohibition of omission in Criminal Code.
VOLUNTARINESS OF THE ACT
Rex v. Larsonneur (UK 1933)
L allowed into UK as long as she didn’t work. Visa changes and she must leave by a certain date. Goes to Ireland where she is promptly deported, Irish held her in custody until she could be transferred to British.
Charged and convicted of being an alien to whom leave to land in UK had been refused.
POL: This was an unfair judgment b/c her return to UK was not a voluntary act. There should not have been AR to constitute the crime.
Jobidon v. Queen (1991)
Jobidon and Haggerty agree to fist fight. J knocks out H who falls unconscious on car, then punches him six more times. H dies.
J charged with constructive manslaughter – manslaughter by means of an unlawful act (assault)
J defends himself by saying that he had consent.
Majority –ruled that there is a point at which consent runs out (s.14 –no one can consent to having death afflicted) – no one can consent to an assault that causes “serious hurt or non-trivial bodily harm”
Minority Sopinka – said that majority was creating a new form of assault – Parliament says that assault must involve a lack of consent from the other party, in this case, you can be charged with assault even if you have consent of other person b/c that consent is not valid
POL: Prof subscribes to Sopinka’s view and feels that J is being convicted of conduct for which he had no prior knowledge.
ACTS OF OMISSION – DO THEY CONSTITUTE CRIMINAL OFFENCE?
Two circumstances:
1)explicitly stated in the Criminal Code that it is an offence
2)everyone has a duty to do x, and it is an offence not to do so
People v. Beardsley (US 1907)
Facts: Beardsley invites woman back to his house for a weekend of drinking.
-Woman takes morphine tablets, fell into a stupor.
-Beardsley and another man take her to basement room occupied by Skoba, asks Skoba to look after her.
-Skoba became alarmed by her condition, calls doctor, she dies.
Issue: Did Beardsley have a duty to take better care of her? In some circumstances an omission of a duty owed to another, where such omission results in death, will make the other chargeable wit manslaughter.
Ratio: Court ruled that while B may have had a moral duty, there was no legal duty such as b/w husband and wife. Guy let off.
POL: To be charged with a criminal offence b/c of an omission, you have to have had a legal duty.
The Queen v. Instan (UK 1893)
Facts: Instan was living with old aunt. Old aunt got sick but did not give aunt any care or food. Aunt died.
Issue: Did Instan have a legal duty to provide food and care for aunt?
Ratio: Court ruled that there was a common law duty (enforcement of a moral obligation) imposed on Instan to provide for aunt. Since aunt was unable to communicate to anyone else her needs, the prisoner impliedly undertook to do either care for her or get someone else to.
POL: This case would be arugued under s. 219 Criminal negligence today.
R. v. Thornton (1991), Ont.C.A.
Facts: Accused knew he was HIV positive and donated blood anyway. He was charged under s.180 for common nuisance, which requires either an unlawful act or failure to discharge a legal duty. The trial Judge found a duty within s.216, and that donating blood was a medical procedure.
Held: Parliament has created no unlawful act regarding donation of contaminated blood. Legal duties are found within statute or common law, and here a duty is found in the common law “to refrain from conduct that will injure another” (Donoghue v. Stevenson). This duty was breached here.
the duty found is much broader than needed because we are only dealing with contaminated blood.
some people say that the effect of this is to create a new crime on the common law; the response is “No, we are looking at the common law to define duty.” (from Jobidon, to “illuminate” the Code).
when this issue (whether a criminal omission can be based on a common law duty, in apparent violation of s.9(a) of the Code) reached the Supreme Court on appeal of this case, it was avoided: “s.216 imposed…a duty of care in giving his blood to the Red Cross. This duty of care was breached…this common nuisance obviously endangered the life, safety, and health of the public.” The Court appears to read s.216 literally to impose a duty of care on those doing lawful acts which endanger others’ lives. This seems to establish a new wide measure of criminal responsibility for omissions.
CAUSATION
Very few cases deal with factual causation i.e. did the accused’s conduct in fact cause the result. These are the ones we studied:
Regina v. Jordan (UK 1956)
Appellant stabbed Beaumont with a knife. B was treated at hospital, but he died a few days later. Jordan was convicted of murder.
On appeal, counsel brings fresh evidence to the fact that the death was not due to stab-wound, or the normal treatment of such a wound (which would lead to a conviction of murder). Allergic to medication, and reacted to abnormal amount of intravenous liquid given to him.
Court quashed the conviction b/c jury may not have convicted J had they known of the other potential causes of the death brought in by the new evidence.
The Queen v. Smith (UK 1959)
Guy stabbed with bayonet twice, but people only notice wound in arm not back. He is dragged by friend to medical services, but dropped twice on the way. He is administered medical services that are not appropriate considering the wound in his back, but no one realizes it b/c they are very busy. Defense tries to argue the Jordan principle, that there was an intervening act due to dropping guy and poor medical treatment. Defense says that this should be in the jury instruction.
Ratio: CA says if the original wound is still an operating and substantial cause then death is a result of the wound, no matter if other factors are operating. Also, that instruction to jury was good as it was on the facts of the case which was “if they were satisfied that wound had caused the death in the sense that death flowed from wound, even if after-treatment was bad.”
POL: Jordan should not set a broad precedent.
De Minimis Cause and Cases of Constructive Manslaughter
R v. Smithers (1975)
Smithers kicked Cobby in the stomach after Cobby insulted him racially. C dies after asphyxiating on his own vomit. The vomiting could be due to the kick itself, or to panic and fear. A mal-functioning epiglottis that might have caused the asphyxiation.
Smithers charged with manslaughter by means of an unlawful act.
Ratio: Court ruled that regardless of whether the mal-functioning epiglottis contributed to the death, the kick administered by Smithers was at least a contributing cause of death outside the de minimis range.
POL: There is disproportionality b/w underlying act of assault and ultimate conviction of manslaughter. The most trivial assault, if it causes death of victim due to some unforeseen weakness, will render accused guilty of homicide. However, this seems to be squeaking by Charter because of what the Court does in Creighton and Cribbin.
R v. Cribbin (1994)
Cribbin involved in the beating of the victim which left him with non-life threatening injuries, but unconscious. Victim was left on side of road, chokes on his own blood and dies.
Cribbin accused of manslaughter. Appealed the decision on the basis that causation threshold test (de minimis) set in Smithers was so low that it infringed s.7 of Charter, because it allowed for culpability without any real foreseeability or fault – morally innocent might be punished.
Ratio: Court ruled that s.7 could not be used to invoke a higher standard of causation. The articulation of fault in Creighton – objective foreseeability of the risk of harm (bodily injury) that is neither trivial nor transitory – combined with causation outside the de minimis range satisfy the requirements of fundamental justice that the morally innocent will not be punished.
POL: Unlawful act manslaughter is based on objective foreseeability and causation outside the de minimis range. If court concludes a higher standard of fault then you’d need a higher standard of causation, so since standard of causation is low in this case, so the element of fault should remain as objective.
CONSTRUCTIVE MANSLAUGHTER
R v. Creighton (1993)
Accused was an experienced cocaine user who injected himself, a friend and the deceased with cocaine, but did not determine the quantity or potency of the drug. Deceased had a heart attack and choked to death on her won vomit.
Accused charged and convicted of unlawful act manslaughter (trafficking in narcotics). Accused appealed.
The issue before the court was whether something less than subjective foreseeability of death was sufficient element of fault since manslaughter was less than seriousness of murder. SCC divided 5:4 in a landmark judgment.
Ratio: Main conclusions of Creighton:
1) Objective foreseeability of bodily injury is required, not objective foreseeability of death for a conviction of manslaughter.
-McLachlin recognizes that this means that the M/R of the crime (bodily harm) is not necessarily symmetrical with the actual consequence of the crime (death). However, this does not mean that the MR for manslaughter must be foreseeability of death since the AR of the crime is death.
-This acceptable because the accused must take the victim as he finds him, and if there is foreseeability of serious bodily harm which results in death b/c the particular victim is affected by the harm in that way, the accused must accept the consequences. She says that there is no rule that the MR must always attach to the precise consequence that is prohibited. As long as there is an element of mens rea that is proportionate to the seriousness and punishment of the offence charged, that’s good enough for fundamental justice. Since manslaughter carries less stigma and punishment than murder, objective foreseeability of bodily harm is enough.
2) The objective test for manslaughter and crimes of criminal negligence is a marked departure from a standard of reasonable care. There should be no consideration of personal characteristics affecting the accused’s awareness of the circumstance that create a risk. Principle and policy dictate that a uniform standard of care for these offences is necessary except incapacity to appreciate the nature of the risk that the activity in question entails.
Note: Unlawful act manslaughter and death by criminal negligence are subject to the same rules. Death by criminal negligence is a form of manslaughter.
CONSTRUCTIVE MURDER
Vaillancourt v. The Queen (1989)
Vaillancourt and accomplice committed an armed robbery in a pool hall. Vaillancourt has a knife, accomplice a gun. V stayed near front of hall, accomplice went to the back were he struggled with a client. Gun went off and client killed. Accomplice escaped, but V was arrested at scene. V testified that he had forced accomplice to unload the gun before the robbery (V put three bullets in his glove) because he did not want it to go off.
Vaillancourt convicted of second degree murder.
He appealed the decision on the basis that s.230(d) was inconsistent with either s.7 or s.11(d) of Charter.
s.230(d) says that culpable homicide is murder, whether or not the person means to cause death and whether or not he knows death is likely to ensue, when he uses a weapon or has it upon his person during the time he commits or attempts to commit the offence, or during or at the time of his flight after committing or attempting to commit the offence.
Ratio: Lamer J: The effect of s.230(d) is to essentially take the intent for the underlying offence and substitutes it for the intent to murder. This violates the Charter because you establish culpability as long as you can establish intent for the underlying offence and that death ensued as a consequence. S.230 does not meet the threshold test for objective foreseeability of death.